Groves v. State

• Decision Date: 15 June 1932
• Docket Number: 8947.
• Citation: 164 S.E. 822,175 Ga. 37
• Parties: GROVES v. STATE.
• Court: Georgia Supreme Court

164 S.E. 822

175 Ga. 37

GROVES v. STATE.

No. 8947.

Supreme Court of Georgia

June 15, 1932

Syllabus bythe Court.

In prosecution for murder of deputy sheriff upon entrance into house with warrant for arrest of accused, failure to charge statute relating to mutual protection of parents and children held not error (Pen. Code 1910, §§ 74, 915, 916).

In prosecution for murder of deputy sheriff attempting to arrest accused under warrant, testimony that year before trial accused evaded arrest under warrant and threatened to kill man attempting arrest held admissible.

Excluding indictment for driving automobile while intoxicated, bearing witness' plea of guilty and offered to impeach witness held not error, notwithstanding indictment also charged witness used profane language, since charge did not involve "moral turpitude."

In prosecution for murder of deputy sheriff attempting to arrest accused under warrant, failure to charge law of justifiable homicide held not error.

Possible inaccuracy in charge, that malignant heart is evidenced by deadly weapon and by brutal use thereof, held not to authorize new trial, where state's evidence showed malicious killing and accused's defense was alibi.

1. Under the facts of this case, the court did not err in failing to give in charge to the jury section 74 of the Penal Code, relating to the mutual protection of parents and children and the persons of one another.

2. The court did not err in refusing to exclude the evidence of a witness for the state, set forth in the fifth ground of the motion for a new trial.

3. The court did not err in refusing to admit in evidence, for the purpose of impeaching a material witness for the state, an indictment with a plea of guilty entered thereon, where it is charged in the indictment that the witness was guilty of driving an automobile on a public road of this state while in an intoxicated condition, though it was also charged in the indictment that he used profane and vulgar language.

4. Under the issues of fact in this case, the court did not err in failing to charge the law of justifiable homicide. This is ruled upon reasons similar to those given for holding, in the first division of this opinion, that the court did not err in failing to charge section 74 of the Penal Code.

5. The court charged, in part, as follows: "Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned heart and malignant heart. An abandoned and malignant heart in the sense of the law is commonly held to be evidenced by a weapon or other appliance likely to produce death, and by the brutal and blood-thirsty use of such instrument." The last sentence in this charge may not be entirely accurate; but the inaccuracy is not cause for the grant of a new trial, in view of the fact that, if the defendant was in the house and shot the deceased under the circumstances shown by the uncontradicted evidence in the case, there could be no doubt that it was a malicious killing.

6. The charge excepted to in the ninth ground of the motion is not error for any of the reasons assigned.

Error from Superior Court, Thomas County; W. E. Thomas, Judge.

Joe Groves was convicted of murder, his motion for a new trial was overruled, and he brings error.

Affirmed.

RUSSELL C.J., dissenting

H. H Merry and Alexander & Jones, all of Thomasville, for plaintiff in error.

G. C. Spurlin, Sol. Gen., of Valdosta, Geo. M. Napier, Atty. Gen., and T. R Gress, Asst. Atty. Gen., for the State.

BECK P.J.

1. In one ground of the motion for a new trial, error is assigned upon failure of the court to give in charge to the jury without written request, section 74 of the Penal Code, which reads as follows: "Parents and children may mutually protect each other and justify the defense of the person or reputation of each other." The failure of the court so to charge was not error. There was no evidence in this case requiring that this section should be given in charge, or which would have authorized instructions to the jury based upon this section. White was an officer, or at that time was acting as an officer in connection with two deputy sheriffs. He had a warrant for the arrest of Joe Groves. Ruby Groves, the sister of Joe, and a witness for the defendant, testified: "I am ten years old, and I was in the house on the night that a man [Mr. White] got shot. My father was there that night. The people in the room were my mother and my sister and my sister-in-law and my father and me and the baby. They all went to bed there and went to sleep there. I slept with my mother. Joe Groves' wife slept with her baby, my sister slept on the other bed; my father slept on the springs on the floor behind the door. There were four beds in that room. I was asleep when the shooting occurred. Joe Groves is my brother." And F. M. Beckham, a witness for the state, testified: "I went in the house with him [White] and was standing by him when he was shot. When we got there Mr. White went to the front door and I went to the back. At the front door he called Joe and told him to come to the door. The house was shut up and neither Joe nor any one else answered. When Mr. White could not get an entrance at the front door he came around to the back door. It was a wooden door and was closed. He pushed the door back. There was no light in the house. It was about two o'clock in the morning. I heard what sounded like some one whispering in the house before I got around to the back door. He went in through the kitchen, and I went into the kitchen with him as far as the partition door. When he left the kitchen he made one step inside the bedroom. We both had our lights (flashlights) in there when he pushed the door open, and there were two women standing there about the middle of the house. They were Joe's mother and his sister. The old lady ran to the door and started to push it to. Mr. White pushed it open. The girl grabbed him on his arm here, and he pushed them back. They shoved him back a step, which was just a step inside the bedroom door, and when they shoved him back the shot fired. At the time the shot fired the two women had hold of him, and it looked like they were trying to shove him back out. I am not a deputy sheriff, and had no authority as an officer that evening when I went there with Mr. White. Mr. Jim Stewart, Mr. Hough, Mr. White, and myself left Thomasville in the car and went straight to this Groves home, this place where these women were living. The road is about 100 yards from the house. It is a very old shack set out in an old field grown up in young pines and broomsedge and tall weeds. We all went up to the front of the house in a bunch. When Mr. White was at the front door before he came around to where I was, I heard him...